According to the testimony of Mary Koscharek, the prosecutrix, she lacked some two months of being eighteen years of age on May 15, 1923, the date on which the first act of intercourse took place. She said that she and the appellant went in a vehicle to a point four or five miles from San Antonio; that they got out of the car and appellant made love to her, and "she naturally loved him." When he asked *Page 155 for carnal favors she told him that they were not married. He said: "We are going to get married, anyhow." He further said: "Well, I promise to marry you anyhow; we are going to get married anyhow. * * * If you will let me do this, I will marry you. I am going to marry you anyhow." She said that appellant had promised to marry her previous to that time. The prosecutrix gave birth to a baby on February 19, 1924. Their relations continued until November, 1923. When she reported her condition to the appellant, he said: "Well, just keep quiet; I will fix it up. I will do the right thing by you; I will marry you."
Upon the examining trial the prosecutrix testified that upon the first act of intercourse, appellant said that if she ever got in a family way he would marry her. He further said that whenever she became pregnant, he was going to marry her anyhow. They had been keeping company for about two months before the first act of intercourse, going to dances and other places of amusement.
The mother of the prosecutrix testified that she had a conversation with the appellant over the telephone in November, 1923; that the person calling gave his name as Willard Kennedy; that to the best of her judgment, she recognized his voice. He asked the whereabouts of Mary. The witness replied: "She is at work yet. * * * What do you want?" Appellant replied: "I am leaving. * * * Tell her good-bye, and tell her that I will do all I can for her." The witness said that the prosecutrix was keeping company with no other men at that time. The witness further said that the appellant and Richard Kennedy, some weeks before the present trial, came to her house and said that they came to settle the business. The purport of this testimony is to the effect that the appellant and his uncle, after the prosecution had been instituted, wished to avoid it by the payment of money. Appellant admitted his relations with the prosecutrix but denied any promise of marriage. To sustain a conviction, corroboration upon that phase of the statute is essential. See Slaughter v. State, 86 Tex.Crim. Rep.. We confess our inability to find testimony meeting the requirement of the law forbidding convictions upon the uncorroborative testimony of the prosecutrix.
The fact that the appellant telephoned to the mother of the prosecutrix and used the language therein imputed to him by her and the fact that after the prosecution was begun there was an effort to have it concluded by the payment of money seem to be the only testimony relied upon or available to the State as *Page 156 corroborative of the testimony of the prosecutrix to the effect that there was a promise of marriage. Neither of these mentioned any promise of marriage; nor do we conceive them to be cogent circumstances supporting that theory. The appellant was a soldier and was transferred from one government post to another. That upon leaving he may have called up the girl over the telephone and failing to get her, told her mother to tell her, good-bye and that he would do anything that he could for her does not occur to us as either an express or implied admission of the promise of marriage. It is entirely consistent with the appellant's theory of the case as revealed by his testimony, namely, that his relations with the girl were not induced by the promise of marriage and that he was not the only one to whom like favors had been extended. Nor does his effort to suppress the prosecution by the payment of money necessarily imply that the prosecution was well founded. Taking the entire evidence upon that subject, it seems that the girl and her family were not unwilling to entertain an agreement to abandon the prosecution but for the intervening circumstances which prevented it.
We are not prepared to say that the testimony of the prosecutrix was such as to characterize her consent to the appellant's relations with her upon a condition of promise. However, the evidence is such as raised an issue upon that subject. At any rate, the corroborating evidence is deemed insufficient.
The motion for rehearing is granted, the affirmance is set aside, the judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.